Formation, Termination, and Scope of Lawyer-Client Relationship + Duties to Clients

Question 1

Formation of Lawyer-Client Relationship

Answer 1

1) Express agreement between parties
2) Implied agreement based on intent and conduct (usually lawyer fails to clearly decline when the client wants help)
3) Court appoints lawyer

Question 2

When can lawyers refuse to help a client?

Answer 2

Lawyers can refuse to help a client usually for any reason and MUST refuse when helping would violate a PR rule.

Can’t seek to avoid court appointment unless you have good cause. Same reasons for permissive withdrawal of representation.

Question 3

Pro Bono Work

Answer 3

Pro bono work is encouraged but not required

Question 4

Mandatory Rejection or Withdrawal

Answer 4

Lawyer must decline a case when:
ABA:
1) Representation will result in violation of professional conduct
2) Lawyer’s physical or mental condition substantially impairs ability
3) Discharged by client

CA:
1) same as above, PR violation
2) same as above, mental or physical condition
4) CA: if client wants you to act without probable cause and for the purpose of harassing or maliciously injuring another person, you can’t continue

Question 5

Permissive Withdrawal

Answer 5

You may withdraw when:
1) Can be accomplished without material adverse effect on client.
2) Good cause (ex: client persists in criminal or fraudulent course of action involving your services, fails to fulfill obligation, used your services in crime, representation was made unreasonably difficult by client, client wants to take repugnant action or unreasonable financial burden on lawyer)

3) CA: client knowingly and freely assents

Question 6

When Withdrawal Prohibited

Answer 6

Exception to rules on permissive withdrawal: you must continue representation when the court orders you to stay. Even if you have grounds for permissive withdrawal.

Question 7

Responsibilities to Client when Representation Ends

Answer 7

CA: Client has a right to their file when the representation ends. That’s true even if they haven’t finished paying fees to you.

CA: Must refund unearned payments too.

CA: Must give notice and time to find another lawyer.

Question 8

Scope of Authority between Lawyer and Client

Answer 8

Client has final authority over:
1) Settlement
2) Pleas
3) Waiving jury trial in crim case
4) Client testifying in crim case

Question 9

Client’s Criminal or Fraudulent Conduct

Answer 9

Can’t assist client, but may advise on legal consequences

CA Marijuana Rule: when giving advice for felonies under fed law that are legal under state law (like smoking pot) the lawyer must inform the client about that related fed or tribal law so they know it’s legal in CA but maybe illegal federally/tribally

Question 10

Limiting the Scope of Representation

Answer 10

Lawyer can limit scope of representation with client’s consent if 1) it’s reasonable to limit it and 2) client gives consent.

It would be unreasonable to limit the scope to like an hour’s worth of work if you know you can’t produce anything of value in just 1 hour.

Question 11

Organizational Clients - Explaining Client’s Identity

Answer 11

Lawyer owes duty to the org, not the individuals. Lawyer must explain this whenever the org’s interest may be adverse to a person at the organization or someone the lawyer is dealing with individually.

Question 12

Organizational Clients - Protecting Org’s Interests

Answer 12

If individual within org is committing violation in a way that would be imputed to the org, the lawyer must proceed to protect the org’s interests. Usually this means reporting the matter to higher ups like CEO or maybe even the Board.

Outside Reporting: If they fail to act, you MAY (but not required) to report the info to people outside the org in order to prevent substantial injury to the org. Only viable to the extent necessary to protect the org. That ability to “report out” is an exception to confidentiality.

CA: Outside reporting is prohibited. You could permissively or sometimes even mandatorily withdraw if you can’t do anything to help because you can’t report out.

Question 13

Client with Diminished Capacity

Answer 13

May take protective action if client can’t protect themselves from substantial harm: like getting a guardian ad litem

You can reveal confidential info JUST to the extent necessary to help the client

Question 14

Basic Duties to Client

Answer 14

Competence

Diligence

Communication

Question 15

Competence

Answer 15

Lawyer has duty of competence to client. That means acting with legal knowledge, skill, thoroughness, and prep reasonably necessary for representation. Includes keeping up with tech and changing law.

CA: Also includes mental, emotional, and physical ability to work as lawyer

If you don’t know the law, you must decline the representation unless you could learn it quickly or consult with a lawyer who is competent in the area.

Emergency situation: you could act for a client without competence

Question 16

Competence vs. Malpractice

Answer 16

Competence is a separate concept from malpractice.

Incompetence can expose you to discipline by the bar under the ethical standards, disqualification if it’s a litigated matter, AND in a separate civil malpractice suit.

Plaintiffs bring malpractice suits whereas disciplinary actions are brought by the state bar.

Malpractice = must show lack of due care and damages

Incompetence = for PR issues, state bar can make the disciplinary action EVEN IF NO CLIENT WAS HARMED

Question 17

Diligence

Answer 17

Lawyer must act with reasonable diligence in repping a client.

CA Standard for Competence and Diligence = subject to discipline only if violation was intentional, reckless, repeated, or involved gross negligence failing to perform services with reasonable competence and diligence

So you might not be subject to discipline for being minorly incompetent.

Question 17

Communication: Withholding info from client?

Answer 17

Withholding info: lawyer can withhold info if the client is in a disturbed mental state temporarily where telling them the info would make em go nuts or do dumb shit

CA: can delay only if client would likely react in a way that would cause imminent harm to themselves or others

Question 17

Communication

Answer 17

Must explain matter to client so they can make informed decisions.

Must keep them informed.

Must comply with reasonable requests for info.

Plea bargains and settlement offers MUST be communicated (exception: unless specifically authorized to accept or reject)

Question 18

Communication: Informed Consent

Answer 18

Any time there is a rule requiring informed consent, you must communicate and explain the issue to the client.

ABA: generally can get oral consent but usually must be confirmed in a writing that memorializes that consent

Sometimes: stricter standard for consent and the writing must be actually signed by the client.

CA: often allows lawyer to do more prohibited things with informed consent but often requires both disclosure and consent in writing (“liberal but literate”)

Question 19

Timing for Attachment of Duties

Answer 19

Obligations to client can attach before they’re even a client. Sometimes continues on after.

Advice to prospective client: must still be competent. Communications must still maintain confidentiality.